Williams v The Queen

[2016] NZCA 36

IN THE COURT OF APPEAL OF NEW ZEALAND

CA181/2015
[2016] NZCA 36

BETWEEN	DAVID PEAR'N WILLIAMS Appellant
AND	THE QUEEN Respondent

Hearing:	10 February 2016
Court:	French, Simon France and Ellis JJ
Counsel:	E A Hall for Appellant D J Boldt for Respondent
Judgment:	1 March 2016 at 2.00 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.

BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

1. Mr Williams was convicted at trial in the Wellington District Court of nine drug-related offences:

   (a)three offences of offering to supply gamma-butyrolactone (GBL), a Class B drug;

   (b)three offences of offering to supply methamphetamine, a Class A drug;

   (c)one offence of supplying methamphetamine;

   (d)one offence of possession of precursor substances with intent to manufacture methamphetamine; and

   (e)one offence of possession of equipment and materials capable of use in the manufacture of methamphetamine with the intention they be so used.

2. The trial Judge, Judge Ronayne, sentenced Mr Williams to a term of imprisonment of three years and nine months.[1]

   [1]R v Williams [2015] NZDC 3088.  That term was comprised of the following sentences to be served concurrently: two years and six months for each charge of offering to supply methamphetamine, two years and six months for the charge of supplying methamphetamine, two years for each charge of offering to supply GBL, and one year and three months for the charge of possession of precursor substances.  A sentence of one year and three months’ imprisonment for the charge of possession of equipment and materials was made cumulative on the other sentences.

3. Mr Williams filed an appeal against conviction and sentence.  The appeal against conviction was subsequently abandoned.  The appeal was filed out of time, but the Crown did not oppose an extension, which is accordingly granted.

Grounds of appeal

1. On behalf of Mr Williams, Ms Hall submitted the sentence was manifestly excessive for two reasons — first, because the Judge wrongly found there to be a commercial element to the offending, resulting in a starting point that was too high; and, second, because a greater discount should have been given for Mr Williams’ efforts at rehabilitation.[2]

Was there a commercial element to the dealing?

[2]Counsel agreed that in considering the appeal grounds we should not take into account a sentence imposed on Mr Williams a month later by Judge Davidson in the Wellington District Court for unrelated offending: R v Williams [2015] NZDC 4706.

1. Judge Ronayne found the offending, which had occurred over a six-month period, was commercial, “albeit at a moderately low level”.[3]  He adopted a provisional starting point of two and a half years’ imprisonment for “the offers and supply of both” the GBL and methamphetamine.  He considered the possession offences discretely attracted a starting point of two and a half years, but discounted this by 50 per cent for totality.  This resulted in a starting point of three years and nine months’ imprisonment.

   [3]R v Williams, above n 1, at [42].

2. On appeal, Ms Hall submitted the offending was not commercial, but more accurately characterised as an addict buying drugs and then on-selling to friends without any profit or personal gain.  In supporting that contention, Ms Hall emphasised the limited number of transactions, the small quantity involved (a total of 4 grams of methamphetamine), the fact the Judge wrongly described the GBL offending as involving a supply instead of an offer to supply and the fact Mr Williams was never found in possession of pseudoephedrine.

3. We do not accept those arguments.  There was ample evidence to support the Judge’s finding of commerciality including text messages, tick lists, numerous snap lock bags, and scales.  As Mr Boldt submitted, the inference that Mr Williams was buying in quantities that he then re-packaged in smaller quantities and sold at retail is irresistible.  Judge Ronayne who heard all the evidence expressly found that Mr Williams was selling at market value.  In contrast, there is no evidence to support the assertion Mr Williams makes through counsel about there being no mark-up.  As regards the possession of precursors and equipment offending, there was clear evidence of a manufacturing set-up, with pseudoephedrine being the only element missing.

4. In those circumstances, we consider the starting point adopted by the Judge was unexceptional and well within range.[4]

Should a greater discount have been given for efforts at rehabilitation?

[4]R v Fatu [2006] 2 NZLR 72 (CA); R v Wallace [1999] 3 NZLR 159 (CA).

1. When it came to considering factors personal to Mr Williams, the Judge applied an uplift of three months on account of previous convictions and the fact most of the index offending occurred while on bail.  The Judge then deducted three months to reflect Mr William’s efforts at rehabilitation.

2. On appeal, Ms Hall told us the Judge was wrongly informed Mr Williams had been drug free for eight months.  The correct position was that he had been drug free for a longer period, namely 18 months.  Ms Hall submitted the error was significant because an 18 month period showed the commitment to change was genuine.  Further, if it had only been eight months that would have meant Mr Williams was still using while on bail, something that would not have impressed the judge.  In her submission, the Judge would have given a bigger discount had he known the correct position, and a bigger discount was warranted.

3. We disagree.  We note both periods have not been independently verified but are self-reported by the appellant.  In any event, as submitted by the Crown, whatever the correct period, it would be rare for a commercial drug dealer to receive a significantly greater discount than three months for rehabilitative efforts.

Result

1. The application for an extension of time to appeal is granted.

2. The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent